The walls are closing in on Donald Trump. Not the big, beautiful walls on the southern border, but potential felony charges in New York, Atlanta and Washington, DC.
Trump’s own impeachment lawyer posed the odd defense that the time to “go and arrest him” would be “after he’s out of office” during the Senate trial in which he was ultimately acquitted. Mitch McConnell, in his head-snapping mea culpa, also invoked criminal remedies at the time: “We have a criminal justice system in this country,” he said, adding, “and former presidents are not immune from being accountable.”
So where does that leave us?
Cyrus Vance, the District Attorney of New York, has had an open investigation for years that appears to be focusing on phony, shifting property valuations given to banks, insurers and tax authorities. Trump has fought to prevent his financial records and tax returns from being turned over, presumably for good reason, but his repeated appeals have now come to an end as the Supreme Court has refused any final relief.
Given that Donald Trump may never have done a straight deal in his life, the likelihood of actionable state law wrongdoing is high. Michael Cohen, who is in a position to know, offered that, with the now-inevitable release of his tax and financial records, “it does not look good for him”.
In Georgia, new Fulton County District Attorney Fani Willis has made clear she will aggressively investigate criminality arising from Trump’s recorded phone call trying to pressure the Georgia Secretary of State into somehow “finding” enough votes to overturn the election. “An investigation is like an onion,” she said. “You never know. You pull something back, and then you find something else.” There is a big onion in Georgia. Trump’s calls to state officials urging them to subvert the election, for instance, could run afoul of a Georgia statute dealing with “criminal solicitation to commit election fraud.” To the extent that Trump was coordinating with Lindsey Graham, who also intervened with the Secretary of State, Rudy Giuliani, or others, conspiracy or even racketeering charges could be brought under Georgia law, Willis suggested.
While a person indicted federally can be arrested anywhere in the United States, if Trump is charged with a state offence, the governor of that state must request extradition from the governor of the state where Trump is located — in this case, Florida and its governor, Ron DeSantis. In Timothy Snyder’s typology, DeSantis is a “breaker,” not a “gamer”. His devotion is to his own political advancement, without regard to any moral or political guardrails. He is an uber Trump loyalist; he encouraged the legal challenge to the presidential election. He told local health officials to stop publishing Covid statistics until after the election and overrode local officials’ mask mandates. He ordered armed raids on the home of a whistleblowing data scientist. He is positively Trumpian in his lack of respect for truth or the rule of law. And he will decide on approving extradition.
The legal issue is straightforward. The Extradition Clause of the Constitution requires “aperson charged in any State with Treason, Felony, or other Crime, who shall … be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”
In 1861, when the Governor of Ohio refused the Governor of Kentucky’s request for the return of a “free man of color” to face criminal charges for helping a slave to escape, the Supreme Court held that the Ohio Governorhad an absolute constitutional obligation to extradite the defendant who had aided a fugitive slave. But it also ruled that federal courts had no authority to enforce this duty. More than 100 years later, in 1987, Thurgood Marshall wrote for a unanimous Court that the federal courts did have the power to order extradition sought by a requesting governor while reiterating that a governor had no discretion to refuse a proper request.
So, what could DeSantis do? In theory, he only has the power to make certain the extradition documents are in order. But Florida law provides that when an extradition demand is made, the Governor of Florida may instruct any prosecutor he chooses “to investigate or assist in investigating the demand, and to report to him or her the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.” The statute is silent as to the scope of the investigation or the length of time that such an investigation can continue. It is also silent as to what conditions affect “whether the person ought to be surrendered.”
Just as Trump has stonewalled, delayed or ignored the rule of law, his acolyte DeSantis can stave off the day of judgment for his mentor, perhaps indefinitely. He can insist he is in the process of investigating, until some court orders him it is time to wind it up. That ruling could then go through the federal court system, to the Supreme Court.
Once his investigation is concluded, DeSantis can then find that Trump “ought [not] be surrendered.” That too can inch through the appellate system. And finally, DeSantis can contend that Justice Marshall’s overruling of the fugitive slave extradition case was wrongly decided and see whether the conservative bloc will rediscover federalism and allow the extradition to be refused. That final decision would leave Trump to avoid the day of judgment and remain “the Prisoner of Mar-a-Lago.”